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2016 DIGILAW 222 (MP)

Omprakash v. State of M. P.

2016-03-11

JARAT KUMAR JAIN

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ORDER 1. This petition under section 482 of the CrPC has been filed quashment of Criminal Case No. 146/2014 pending before the Judicial Magistrate, First Class, Indore arising out of FIR 357/2014 registered at Police Station Vijay Nagar, Indore for the offence punishable under section 188 of the I.P.C. 2. The brief facts of the case are that the District Education Officer, Indore lodged a written complaint through M.M. Tiwari, Principal, Government Higher Secondary School, Nanda Nagar, Indore stating that the Additional Collector, Indore has issued an Order under section 144 of the CrPC and in violation of the said Order, present applicant was selling the school uniform with school mono. On this basis, Police has registered the Crime No. 357/2014 for the offence under section 188 of the IPC against the applicant who is the owner of shop in the name of “Akash Uniform Sansthan”, Vijay Nagar, Indore. After investigation, Police Station, Vijay Nagar, Indore has filed the final report against the applicant. The Magistrate explained the particulars of offence under section 188 of the IPC. Applicant denied the charge and the case was fixed for evidence. 3. This petition is filed on the ground that in view of the provisions of section 195 of the CrPC, for the offence under section 188 of IPC, the Court can take cognizance only on a complaint in writing filed by the public servant whose order has been violated, whereas in the present case, no such complaint has been filed by the Additional Collector. Thus, the Court has wrongly taken the cognizance. For this purpose, he placed reliance on the judgment of this Court in the case of Ashok Agrawal v. State of M.P. (Miscellaneous Criminal Case No.5306/2014) decided on 28.11.2014. [ 2015(I) MPWN 28 ]. It is also submitted that the apex Court in the case of State of Haryana v. Bhajan Lal [ AIR 1992 SC 604 ], has held that the Court can exercise the inherent power either to prevent abuse of process of law or to secure the ends of justice. 4. On the other hand, learned Government Advocate opposes the prayer. He, however, candidly admits that in view of section 195 of the CrPC, the Magistrate can take cognizance only on the basis of written complaint by concerned public servant whose order has been violated. 5. 4. On the other hand, learned Government Advocate opposes the prayer. He, however, candidly admits that in view of section 195 of the CrPC, the Magistrate can take cognizance only on the basis of written complaint by concerned public servant whose order has been violated. 5. After hearing learned counsel for the parties, I have perused the record. In the present case, it is alleged that the applicant has violated the order dated 22.3.2014 issued by Additional Collector under section 144 of the CrPC and admittedly, the Additional Collector has not filed any complaint. It is only on the direction of District Education Officer, Indore, M.M. Tiwari, Principal of Higher Secondary School, Nanda Nagar, Indore has lodged the report and on that, final report has been filed against the present applicant. The Magistrate has wrongly took the cognizance. The Division Bench of this Court in the case of State of M.P. and Jyotiraditya Scindia [ 2014(1) JLJ 326 ], has held that in view of the provisions of section 195 of the CrPC the Police cannot register for the offence under section 188 of the IPC. The Division Bench also relied upon the principles laid down by the apex Court in the case of C. Muniappan and others v. State of Tamil Nadu [ (2010)9 SCC 567 ], and held that without complaint as defined by section 2(d) of the CrPC, cognizance cannot be taken under section 188 of the IPC. Applying the ratio, the application filed under section 482 of the CrPC deserves to be allowed. 6. Accordingly, this application is allowed. The FIR registered at Crime No.357/2014 for the offence under section 188 of the IPC so also the Criminal Case No.146/2014 pending before the Judicial Magistrate, First Class, Indore are hereby quashed. Copy of this order be sent to the trial Court for information and necessary action.